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BEN WILLIAMS – Summer Recess 2019: PowerScoring Trump’s judicial confirmations

Ben Williams

The U.S. Senate concluded business on August 1, 2019, and the Senators left town to enjoy their traditional summer recesses. To date, Congress’ upper chamber has confirmed 146 Article III federal judges nominated by U.S. President Donald Trump. Some news outlets, including CNN, contend Trump is packing the federal bench in an unprecedented fashion. A front-page The New York Times article on August 4 superficially compared the judicial confirmations of Presidents Trump and Barack Obama and alluded to a remaking of the courts. Are these assertions accurate?

Consistent with prior analyses, we provide a two-tiered assessment vis-à-vis other U.S. Presidents boasting significant numbers of judicial appointments.

The Federal Bench

Trump’s confirmations to date include 2 of the 9 Supreme Court justices, 43 of the 179 appellate judges, 99 of the 673 district court judges, and 2 of the 9 international trade judges.  Ignoring the hundreds of senior status judges, Trump has appointed a little over 16% of the 870 active judges on the federal bench.

Nomination, Confirmation and Appointment

Presidential Article III judicial NOMINATIONS are sent to the Senate for “advice and consent” and then referred to the Senate Judiciary Committee for vetting. Assuming the committee elects to act on a nomination, it could reject the nomination, or more likely, “report” the nominee with a recommendation (favorable, unfavorable, none) to the full Senate for a simple majority vote. If CONFIRMED by the Senate, the President is so notified.  Absent a last-minute change in plans, the President then executes a presidential commission to cement the APPOINTMENT.

The nomenclature can be tricky.  On July 15, Caleb Parke, an associate editor of Fox News, mistakenly wrote that “President Trump has nominated over 125 judges to the federal courts, solidifying his judicial legacy.” Mr. Parke probably meant “confirmed” not “nominated,” as Trump had, as of that date, “nominated” 194 people to Article III judgeships; however, the Senate had confirmed only 125 and not all of them had yet been appointed.  As to the “legacy,” keep reading.

Confirmations don’t come easy. Or fast. Since Trump took office, the continuous confirmation Senate process witnessed a change in parliamentary procedure, a departure from the blue slip tradition, allegations of a stolen Supreme Court seat, a Me-Too-He-Said-She-Said televised donnybrook, and historically unprecedented numbers of cloture, roll-call, and opposition votes.

The outnumbered Senate Democrats mounted determined resistance to confirmations with little success (other than delay). During the 115th U.S. Congress, with Republican Senators and Democrats split 51-49, a Republican defection resulted in the first-ever confirmation of a federal judge by a 51-50 Vice-President-tie-breaking vote. Several unacted upon nominations expired at the end of that Congressional term and were not re-nominated in the following 116th U.S. Congress. In June 2019, during the 116th U.S. Congress, Trump formally withdrew one district judge nomination.

The process beginning to end can seem like an eternity.  U.S. District Judge Kacsmaryk of Texas was first nominated by Trump on September 7, 2017, and finally confirmed by the Senate on June 18, 2019 – 649 days later.  Mary Susan McElroy, first nominated by Obama in 2015, was re-nominated by Trump in 2018 and 2019 for a federal judicial post in Rhode Island.  She awaits a hoped-for Senate hearing.

My advice to nominees?  Don’t quit your day jobs. 

 

 

 

Comparing the Trump Confirmations to other U.S. Presidents

To add objectivity to the packing, remaking, and legacy contentions, we first compare the sheer number of Trump’s confirmations through August 2 of his third year to the confirmations, for the same time window, of the four U.S. Presidents who made the most judicial appointments over the course of their presidencies – George W. Bush, Bill Clinton, Barack Obama, and Ronald Reagan. Using that simple gauge, the rankings are:

Ranking President Judicial Confirmations (August 2 of 3rd year in office)

1. Clinton 154

2. Trump 146

3. Geo. W. Bush 145

4. Reagan 104

5. Obama   95

Numerically, Clinton maintains the lead as he did at the 18- and 24-month comparisons. Trump comes in second. This easily verified fact seems to elude the liberal press.

PowerScoring the Judicial Confirmations

Looking beneath raw numbers to scrutinize the actual judicial positions results in a change to the scorecard. We employ a subjective weighting that values a Supreme Court justice at 50x and an appellate court judge at 10x that of a district and international trade judge.

Ranking President PowerScore Calculation (confirmations/August 2 of 3rd year)

1. Trump 631 (50 x 2) + (10 x 43) + (1 x 99) + (1 x 2)

2. Clinton 468 (50 x 2) + (10 x 24) + (1 x 128) + (1 x 0)

3. Bush (W) 388 (50 x 0) + (10 x 27) + (1 x 117) + (1 x 1)

4. Obama 364 (50 x 2) + (10 x 19) + (1 x 74) + (1 x 0)

5. Reagan 341 (50 x 1) + (10 x 21) + (1 x 80) + (1 x 1)

Using this formula, Trump leaps from second place in sheer number of confirmations to a weighted first place due to the high number of appellate judges.

Readers remain free to dispute my subjective factoring (50-10-1-1). Take note, however, no variation in the Supreme Court weighting would knock Trump from the lead.

A more robust evaluation might consider other relevant variables, such as the average age of new judges, appointments to the prominent D.C. Circuit, a ranking of the circuits, and an ideology shift resulting from an appointment. The newfangled willingness of district judges to issue nationwide injunctions merits consideration.

Attempting a Final Assessment

A final assessment can and must wait. With just under 18 months left in the first term, 103 existing judicial vacancies (including 4 circuit court positions) and 9 anticipated retirements (including one circuit court position), Trump has an opportunity to surpass other presidents in sheer number of appointments during a first term.

Variables include possible House impeachment proceedings, RBG’s health, the 2020 Presidential campaign, and the 45th President’s unfiltered Twitter propensity.

Conclusion

Media reports of Trump’s packing the federal bench with an unprecedented number of judges are inaccurate. Clinton continues to lead in sheer number of confirmed federal judges over the same period, including two Supreme Court justices (Ginsburg, Breyer). Using the PowerScoring weighted analysis, Trump overcomes the numerical deficiency and gains a decisive edge based on the composition of the confirmations.

There appears to be a remaking and legacy in the works.

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» BEN WILLIAMS, the author, is a Mississippi attorney.  Email Ben at Ben39157@gmail.com.  Ford Williams, the artist, is an industrial design summer intern with a Fortune 500 company and a rising senior at the Savannah College of Art & Design (SCAD).

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